2018 | Employment Law Services (ELS) LTD

Is failing a drug test a reason for an automatic dismissal?

Posted on 20 December 20189 June 2023 by @deliver_els

A recent decision made by the Employment Tribunal has highlighted the importance of not treating a positive drug test result as a reason for automatic dismissal.

In the case of Ball v First Essex Buses Ltd, Mr Ball was employed as a bus driver and had over 20 years’ service with his employers. Part of his employment involved a routine drug test, in which the employee was expected to provide a saliva sample. To the employee’s surprise, the drug test came back and had tested positive for cocaine. Because of this, his employers suspended him and advised him he would be required to attend a fact-finding meeting.

At this meeting the employee argued that he had not taken any drugs apart from medication prescribed by his GP and that he had arranged to have a hair follicle test to prove this. This test then came back negative.

At the disciplinary hearing, Mr Ball was informed that his employer would only consider the saliva test results and not the independent hair follicle test results as they had not been carried out by one of the companies approved testers.

It was concluded that he failed the random drug test and his employment should be terminated with immediate effect. The employee appealed but remained dismissed.

Employment Tribunal considerations

When determining whether a dismissal is fair or unfair, the Employment Tribunal will assess whether the employer acted reasonably or unreasonably. In which they will look at the procedure the employer followed: Did the employer carry out a proper investigation? Was the employee given the opportunity to take a colleague into the meeting and were they given the opportunity to appeal the decision? They will then look to see whether the reason for dismissal fell within the band of reasonable responses.

In Bell v First Essex Buses Ltd, the Employment Tribunal held that: “Given the random nature of the test; the contra-indicators of the claimants good character, age (he was 60 years old), health, etc; the possibility of cross-contamination; the possibility of mislabelling the sample; the two negative hair follicle tests; and the claimants offer to retake any drug tests, the respondents decision to dismiss was therefore outside the band of reasonable responses.”

Important points that were noted included:

The employer had not stated in his disciplinary procedure that failing a random drug test would be viewed as gross misconduct;
The investigatory officer did not give the employee the chance to dispute the drug test in line with their alcohol and drug procedure;
The dismissing and appeal officer refused to take into consideration all other justifications for the employee having failed the drug test.

On these grounds the dismissal was held as procedurally and substantially unfair.

Comment

Employers should be cautious when treating drug test results as black and white. In this situation Mr Bell’s employer failed to recognise the independent evidence presented by the employee. To reduce the risk of a claim, it is important that employers are not closed-minded and look at all the facts of the case before coming to any harsh decisions. In this situation the employee had an exemplary record and it could be argued his employers were too harsh when applying their drug and alcohol policy.

How can EmployEasily Legal Services help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662. 0000

All I want for Christmas is…. A stress-free payroll!

Posted on 13 December 20187 June 2023 by @deliver_els

Christmas and New Year can be the most expensive time of the year for most people. If you employ people, the festive period can bring a number of problems that you will need to be aware of before you can wind down for you break.

In this blog we will detail some of the most common employer Christmas payroll issues and how to avoid them.

December Pay Date

The December pay date can be awkward, paying your employees a few weeks earlier means a longer month in January.

Generally, most employees will get paid the last working day of each month, however, if your organisations pay date falls before Christmas, your employees should be paid as normal. Failure to do so exposes your business to potential claims of breach of contract.

At Employment Law Services (ELS), we are often asked at this time of year: “Do we have to bring our employees pay dates forward in December?”

The short answer to this is, no. Employers are not legally obliged to bring their employees pay dates forward for December unless it says so in the contract of employment.

Christmas Bonuses and Gifts

Many employers choose to hand out Christmas bonuses and gifts to their employees to thank them for another successful year in business. On paper, this may look like a straightforward matter, however, for your payroll team it can be a huge challenge.

Employers should set out the difference between cash gifts and physical gifts and then consider whether the employee can sell this gift on for cash or whether the employee in receipt of the gift is a named director of the company and how much money they earn.

This can be a fairly complex matter and therefore, it is important that your payroll team are clear on both definitions.

Employers should note, that they do not have to pay a bonus to employees at all unless it states otherwise in the contract of employment.

Christmas Working Hours

There are no legal requirements around festive working hours and while a lot of employers choose to close the business for the full 2 weeks, others may choose to have their employees work in between. In this event, employers should ensure they have made the appropriate arrangements with pay roll so that these employees are paid the correct salary and on time.

How can EmployEasily Legal Services help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662. �

An employer’s guide to Christmas employment issues

Posted on 27 November 20187 June 2023 by @deliver_els

With Christmas only 4 weeks away, the employment issues surrounding this holiday often create a HR headache for employers. This blog is intended to arm employers with the correct knowledge and guidance to help make the festive season as stress free as possible.

1. Overtime

If an employee has normal working hours, overtime usually means any time you work beyond these hours. Normal working hours will be set out within the employment contract. It is important to note, that despite how busy you are with the working year coming to an end, you can not force employees to work overtime unless the employment contract states otherwise.
The Working Time Regulations sets out that employees do not have to work more than 48 hours per week on average. If an employee wishes to work beyond the 48-hour limit, they must put this in writing. This is otherwise known as the opt-out agreement.

2. Managing client gifts

No matter how well intended a client’s gift may be, the potential exists for impropriety. And, whilst it may be flattering to be in receipt of the gift, employers and employees should remain cautious before accepting a client’s token of appreciation. Accepting gifts of high value, could be viewed as something that has potential to influence the professional relationship.
In addition, if a high-valued gift is viewed as giving someone a financial advantage to prompt that person to carry out their duties or activities improperly, accepting the gift may result in an offence under the Bribery Act 2010.
Therefore, all employees should be reminded of the rules and policies on accepting client gifts. For example, all gifts received should be entered into a register and no gifts of a certain value should be accepted without prior consent from a line manager.

3. Winter sickness bugs

With the cold and flu spreading more easily in the winter months, employees are more likely to catch illnesses and pass them on. Given the high costs that are associated with short-term sickness, employers should ensure that they have in place an easily implemented sickness absence policy, including who should be the point of contract during the absence, what evidence will be required, sickness pay details and return to work interviews.

4. Adverse weather conditions

As an employer, it pays to be fully prepared for whatever weather the winter throws at you – whether its wind, rain, storms, snow or ice.

So, what issues should you keep in mind?

• You are not legally obliged to pay employees if they do not come into work because of the weather
• You should have a policy that outlines this
• Try to be flexible where possible – can you both come to a short-term arrangement in which the employee can work from home until the weather improves?

5. Dress code and Christmas jumpers

Some employers choose to relax their dress code at Christmas. Allowing employees to dress down and wear Christmas jumpers can help bring some festive cheer into the workplace. However, employers should be cautious about the wording when notifying employees about this, ensure they know Christmas jumpers and casual dress is optional and not compulsory. In addition, employers should be sensitive to employees who do not celebrate Christmas or do not wish to dress any differently at this time of year.

How can Employment Law Services (ELS) help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

The law on payslips is set to change by April 2019: Start preparing now!

Posted on 6 November 201812 June 2023 by @deliver_els

Providing your employees with payslips is generally a routine process that does not require a lot of thought behind it.

Under UK law, a payslip should be issued to all employees each time they are paid. Employers do not need to issue payslips to non-employees, this includes contractors, freelancers and workers. There are further exceptions made for the police service, merchant sea men and master or crew members working in share fishing.

At present, the law states that an employee’s payslip should be issued on or before pay day and should set out the following:

• Earnings before and after any deductions
• The amount of deductions that may change each time the employee is paid, for example, tax and national insurance

As of April 2019, employers will need to state how many hours all employees and workers are being paid for on the slip. This is because workers who have not been receiving a payslip up until now have been seen to struggle when attempting to calculate what deductions are being taken from their pay. And, if the pay calculated does not support what it states on the payslip, they are able to dispute this more easily in front of an Employment Tribunal.

How can Employment Law Services (ELS) help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

2019 Budget: National Living Wage set to increase by almost 5%

Posted on 31 October 20187 June 2023 by @deliver_els

The National Living Wage, which is the statutory minimum wage for those aged 25 and over, has to rise to £8.21ph from April 2019 – which means an additional £690 annually for low paid workers.

The Low Pay Commission (LPC), which recommended the increase, have anticipated that the increase will see almost 2.4 million workers throughout the UK better off.

In addition, the Government have accepted all of the LPC’s recommendations for the following NMW rates:

• 21- to 24-year-olds will increase by 4.3% from £7.38 to £7.70 per hour;
• 18- to 20-year-olds will increase by 4.2% from £5.90 to £6.15 per hour;
• 16- to 17-year-olds will increase by 3.6% from £4.20 to £4.35 per hour;
• Apprentice rates will increase by 5.4% from £3.70 to £3.90 per hour; and
• The accommodation offset will increase by 7.9% from £7.00 to £7.55.

“The increase in the national living wage (NLW) to £8.21 in April 2019 will ensure a pay rise for the lowest-paid workers that exceeds both inflation and average earnings.

“Over the past year, the labour market has continued to perform well and the economy, while subdued, has met the criteria of ‘sustained growth’ set out in our remit for the NLW. We therefore recommended an increase in line with a path to 60 per cent of median earnings by 2020.” Said Sanderson, who is the chair of the LPC.

He added further: “We recommended real-terms increases to the national minimum wage (NMW) rates for younger workers and apprentices, as the labour market conditions for these groups remain strong. These rates will continue to rise faster than both inflation and average earnings.

“We opted for smaller increases than we recommended last year because of slightly weaker labour market conditions for young people, combined with insufficient evidence to fully understand the impact of the largest increases in a decade implemented in April of this year. However, next year’s will still be some of the highest increases on record.”

How can Employment Law Services (ELS) Help?
If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

HR Health Check

Posted on 17 October 20189 June 2023 by @deliver_els

How healthy is your business? To find out, answer these simple questions below.

1. Do all your employees have a written contract of employment? Y/N
2. Are these contracts of employment issued within the first 8 weeks of their employment commencing? Y/N
3. Do you have job descriptions for all roles within the organisation? Y/N
4. Do you check that all employees have the right to work in the UK? Y/N
5. Do you have a staff handbook? Y/N
6. Do you have written disciplinary and grievance procedures? Y/N
7. Do your policies and procedures comply with employment legislation? Y/N
8. Do you have a probationary period for new hires? Y/N
9. Do you know the 5 reasons for a fair dismissal? Y/N
10. Do you have a clear procedure for dealing with absence? Y/N

Answers

If you answered yes to under 5 questions, you are at high risk and should take immediate action.

If you answered yes to under 10 questions, you are at moderate risk, there is room for improvement in this instance.

If you answered yes to 10 and more questions, well done! You are at low risk – your HR essentials seem to be in place.

How can Employment Law Services (ELS) Help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Handing notice in to a job is not always a letter of resignation

Posted on 9 October 20188 June 2023 by @deliver_els

A letter that sets out one months’ notice should not be automatically assumed as a letter of resignation, an EAT Judge has confirmed.

In the case of East Kent Hospitals University NHS Foundation Trust v Levy, Judge Jennifer Eady dismissed the appeal and confirmed the tribunals earlier decision that the employee had in fact been unfairly dismissed.

In this case, the employee was offered a new role in the radiology department, as a result of this she submitted a letter to her line manager giving “one months’ notice”.

After the claimant had become unhappy in her current position, she successfully applied for a role in the radiology department – on June 10, 2016 – subject to pre-engagement checks.

Her letter to her manager, Gorton Davey read: “Please accept one month’s notice from the above date”.
On the same day, her manager responded saying: “Thank you for your letter… in which you tendered your notice of resignation. I can confirm that your last day of work within Health Records will be 8th July 2016. I would like to take this opportunity in thanking you for your hard work, dedication and contributions to a highly successful team over the years, and I wish you every success with your future employment.”

However, on 16th June, the claimants new job offering was retracted on the grounds of her poor attendance record. Because of this, Levy attempted to withdraw her notice, but her manager refused and wrote to her to confirm the date of termination, addressed the issue of outstanding holiday entitlement and filled out an employee termination form.

Mr Gorton-Davey wrote: “It is with regret that I cannot accept your request and as a result, your last day of work with us will be on Sunday, 10 July 2016. I also need to inform you that due to the number of days annual leave taken already this financial year, the Trust will be looking to recover 88 hours pay from you”.

As a consequence of this, Levy brought a claim of unfair dismissal against her employers. In April 2017, the Employment Tribunal held in favour of the claimant and held that her employers had unfairly dismissed her.

Her employers responded arguing that the wording used by Levy in her letter of notice was unambiguous. The Employment Tribunal rejected this response and said the letter could have been either a notice of intended transfer or a notice of termination. Stating that the employees’ letter would lead a reasonable observer to agree that the claimant was not ending her employment but simply making her manager aware that she intended to accept the offer.

The Tribunal also took into consideration the conditions of the claimant’s letter in that she was unaware that her employment history had potential to affect the conditional offer and that she needed to work to support herself and her family.

East Kent Hospitals University NHS Foundation Trust appealed and failed. At the EAT, Judge Eady expressed: “…once it became apparent that the offer of a position in the Radiology Department had been withdrawn, and the claimant was seeking to withdraw her notice of departure from Records, the respondent’s position was that the claimant’s employment must come to an end.

“Given its findings of fact, however, I do not consider the [employment tribunal] erred in finding that this, in context, amounted to a dismissal and not simply the acceptance of a resignation.”

Employer considerations

It is important to note, that the events in this case are rare. However, the circumstances of this case should serve a reminder to all employers to ensure a clear understanding when an employee resigns or offers to give notice of resignation. Employers should attempt to understand why the employee is resigning, the notice they intend to serve and clarify when the employment relationship will terminate.

How can Employment Law Services (ELS) help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Employment Tribunal Guidance for Employers

Posted on 3 October 20188 June 2023 by @deliver_els

The Employment Tribunals (ET) are an independent judicial body established to resolve disputes over employment rights between employers and employees. Claims likely to be heard in the ET will involve matters on unfair dismissal, discrimination, wages and redundancy payments.

In July 2017, the Supreme Court unanimously held that ET fees were unlawful and must be quashed. In September 2018, the Ministry of Justice (MOJ) published tribunal statistics for April-June 2018 and across the boards the numbers are up!
Key figures include:

• Number of single claims lodged increased by 165% compared with the same quarter last year.
• The number of single claims outstanding rose by 130% compared with the same quarter last year.
• There have been 12,400 fee refund payments made since the fee refund scheme was introduced, totalling just over £10m.
• Disability discrimination cases had the largest average award (£30,700). Religious discrimination claims had the lowest average award (£5,100). The average award for unfair dismissal awards was £15,007.

If you are an employer and you have received an ET claim, it is crucial you act quickly and carefully to place yourself in the best position to defend the claim, or to reach a fair settlement agreement with the employee. At Employment Law Services (ELS), we have set out 5 top tips that should be applied when responding to a claim.

(1) Address the claim immediately

A tribunal claim is not something that should be set aside to deal with at a later date. Employers should have procedures in place to make sure that, when an ET1 is received, it is immediately brought to the attention of the appropriate people.
An employer should then make the decision on who is going to have the responsibility for dealing with the claim and begin working on the response.

An employer’s response should arrive at the ET office, on the appropriate form (an ET3), within 28 days of the date on which the claim was sent out.

(2) Evaluate the merits of the claim

Employees cannot submit an ET claim unless they have contacted the ACAS early conciliation service in the first instance. If both parties have gone through this process, the employer will probably already have knowledge of the employee’s complaint and had the opportunity to process its merits.

In this event, the employer should carefully carry out an assessment of the employee’s complaint and what defence they may have and then decide whether to fight the case or not.

Sometimes, employers discover that a settlement agreement is the less expensive option when weighing the costs of defending an ET claim. Settlement agreements are legally binding contracts which can be used to end an employment relationship on agreed terms. Once this document has been signed, the employee won’t be able to make an ET claim about any type of claim which is listed on the agreement.

(3) Focus on the issues relevant to the case

When responding to an ET complaint, it is crucial that employers focus on the employees specified allegations and any legal issues that may surround this. An employer’s response should be carefully drafted in as much detail as possible as they may not get the opportunity to introduce more information at a later date.

(4) Pay attention to detail

Whoever is in charge of drafting the ET3 must ensure that there are no inconsistencies and that all statements are factual and supported by the correct evidence.

(5) Submit the ET3 on time

An employer’s response form (ET3) should be submitted within 28 days of receiving the claim. This form can be submitted by using the online submission tool or returning the paper form.

The main thing to remember here is to ensure the tribunal office receive the form before the deadline, the form should not be sent on the 28th day. Employers may have the opportunity to apply for an extension, but this will be permitted at the judge’s discretion.

Fixed Fee ET work

Defending Employment Tribunal claims, or threats of a claim can be costly, but it doesn’t need to be. with Employment Law Services (ELS)’ Fixed Fee Employment Tribunal Representation offering, employers can save time and money. We understand how expensive, stressful, time consuming and distracting defending an Employment Tribunal Claim can be, even before the case ever reaches the hearing stage.

Negotiating the employment tribunal rules & procedures can be confusing & difficult but it doesn’t need to be. With our Fixed Fee Employment Tribunal Representation offering, employers can save time and money.

We believe this approach helps you control costs, minimise stress and wasted time and management resources, allowing you to continue to focus on your core business.

If you are faced with an Employment Tribunal claim, or threat of an Employment Tribunal Claim, Employment Law Services (ELS) can help. If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Parental Bereavement Bill receives Royal Assent

Posted on 27 September 201812 June 2023 by @deliver_els

The new Parental Bereavement (Leave and Pay) Act 2018 sets out that parents who suffer the death of a child under the age of 18 or a still birth from 24 weeks of pregnancy will be entitled to two weeks paid leave. It is expected that these new rights will be incorporated into the Employment Rights Act 1996 in 2020.

At present, most employees have the statutory right to a “reasonable” amount of unpaid time off under the Employment Rights Act, this is to allow them to deal with unforeseen matters or emergencies that involve a dependant.

The death of a child can have a severe impact on a parents’ physical and emotional wellbeing. Therefore, it is crucial that employers manage this difficult time carefully and see that the employee successfully returns to work in the future.

In 2016, a survey conducted by the charity, Child Bereavement UK disclosed that less than one third of British adults who were employed at the time of their loss said they felt supported by their employer. This figure highlights the need for improvement in this area.

New legislation

This Parental Bereavement (Leave and Pay) Act 2018 initially started off as a Private Members Bill, however, it has always been supported by the Government; who expressed: “This law makes parental bereavement leave a legal right for the first time in the UKs history. Losing a child is an unimaginable trauma. I am delighted we have reached this important milestone which so many people have campaigned for.”

The act sets out that:

• A bereaved parent will be entitled to take at least 2 weeks’ leave which must be taken in the first 56 days following the child’s death. This leave should be taken in blocks of 1 week and can be continuous or discontinuous;

• Leave can be taken in respect of each child if there is more than one child involved;

• The definition of a qualifying parent may be framed (in whole or part) by reference to the employee’s care of the child before he/she died (regulations will provide more detail on the definition);

• The rules about rights during that leave (and other family leave) also apply during bereavement leave, including the right to the same terms and conditions (other than in respect of pay) and (broadly) the right to return to the same role;

• The process that should be followed i.e. the requirement to give notice and provide evidence, will be set out within the regulations;

• The rates of pay will also be determined by the regulations, but in order to receive pay (rather than be able to take leave), a parent must have at least 26 weeks’ continuous service and received pay above the lower earnings limit for the last 8 weeks.

Employer considerations

• Employers should have well written bereavement policies in the workplace, this will equip employees with certainty and security during difficult times;

• Details regarding death should be kept private under data protection laws. Employers should consider asking the employee how much information they wish to pass on to their colleagues;

• It is important that employers are aware of the risk of racial or religious discrimination claims that may come as a result of refusing an employee time off for religious observances on death. This is because certain religions require a set time to mourn – For example, Muslims have certain set mourning periods, depending on the relation of the deceased relative.

How can Employment Law Services (ELS) help?

If you are an employer who requires assistance with any of the issues raised in this blog contact us today for your free consultation 0370 218 5662.

Latest Employment Tribunal Statistics | April to June 2018

Posted on 22 September 20189 June 2023 by @deliver_els

The MOJ has published the tribunal statistics for April to June 2018 and across the board the numbers are up!

Here are the key figures:

• number of single claims lodged increased by 165% compared with the same quarter last year.

• the number of single claims outstanding rose by 130% compared with the same quarter last year.

• there have been 12,400 fee refund payments made since the fee refund scheme was introduced, totalling just over £10m.

• disability discrimination cases had the largest average award (£30,700). Religious discrimination claims had the lowest average award (£5,100). The average award for unfair dismissal awards was £15,007.

This upward trend in Employment Tribunal claims is unsurprising following the abolishment of Tribunal fees in July 2017, and the figures above are reliable as April to June 2017 was the last full quarter when fees were in force.

Employers should take note of the significant increase in Employment Tribunal claims and ensure they have in place an effective risk management strategy to ensure compliance and adherence with employment legislation to prevent problems and protect their business from costly Employment Tribunal claims.

Our Fixed Fee Annual Retainer Service helps Employers to manage staff issues across all aspects of their employment, ensuring compliance and reducing risks. Find out more here: https://employmentlawservices.com/employment-law-advice/annual-retainer-service/

And if you have been unfortunate enough to have been one of the 10,966 Employers who had a claim against them in the current quarter, you may find our Fixed Fee Employment Tribunal Representation Service helpful. Find out more here: https://employmentlawservices.com/employment-law-advice/fixed-fee-tribunal-representation/